Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr – Oral Argument – November 28, 1995

Media for Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr

Audio Transcription for Opinion Announcement – June 28, 1996 in Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr

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William H. Rehnquist:

We’ll hear argument next in Number 94-1654, The Board of County Commissioners of Wabaunsee County, Kansas, v. Keen Umbehr.

Mr. Patterson, you may proceed whenever you’re ready.

Donald R. Patterson:

Mr. Chief Justice, and may it please the Court–

This is a First Amendment case.

It involves the interest and the responsibility of local government in making the decisions in the course of governing and in the course of delivering government services that have an economic impact on contractors.

It also involves the interest of a contractor who engages in what I will refer to as protected activity, activity protected by the First Amendment, and for convenience I’d like to refer to that as a local contractor, if I may.

Sandra Day O’Connor:

Mr. Patterson, it’s not a case involving any issue of political patronage, is it?

Donald R. Patterson:

No, it is not.

We can rule that out.

This is not a patronage case.

In fact, I think you could almost say it’s the opposite.

Sandra Day O’Connor:

It’s a free speech case–

Donald R. Patterson:

Exactly.

Sandra Day O’Connor:

–In the context of an independent contractor.

Donald R. Patterson:

Exactly.

Sandra Day O’Connor:

With the county.

Donald R. Patterson:

That’s exactly what it is.

Antonin Scalia:

I thought our patronage cases were decided as free speech cases under the First Amendment.

What were they decided under if it wasn’t under that provision?

Donald R. Patterson:

I think they were.

The question I was asked was whether or not this was a patronage case, and it’s not.

It is a free speech case.

Antonin Scalia:

Well, I understand that the free speech in question was not free speech regarding partisan politics, but why would that make any difference?

How would you distinguish the patronage cases?

They’re decided as First Amendment cases.

Donald R. Patterson:

They are a form of First Amendment case, and probably not.

They are First Amendment cases–

Antonin Scalia:

So you think we could hold for you in this case, but in a later case where the contractor says, I don’t like Republicans, we… and I’m going to vote Democratic, we could allow that contract to be denied, because after all, the speech in this case is partisan political speech and it’s okay to discriminate against that.

Donald R. Patterson:

–It depends upon how the contour of the First Amendment right is defined in terms of the language of the First Amendment, which uses the word, abridging.

Well–

Donald R. Patterson:

To me, it comes right down to that.

William H. Rehnquist:

–One way to distinguish the cases like Elrod and Rutan from this case, certainly, is to say that on the other side of the ledger in the political patronage cases, if I may refer to them as that, there was the interest in political organization and that sort of a thing that apparently is not present here.

Donald R. Patterson:

It is not, and I believe that probably is the answer to the question over here, to Justice Scalia’s question.

This doesn’t involve a question of party loyalty, anybody’s political philosophy.

It doesn’t.

The First Amendment rights that were exercised were on other subjects, that’s all.

Now, I think that the balance of these interests is required by the fact that government, local government in particular, in the course of making government decisions and delivering government services, requires them to make decisions that have an economic impact on contractors and potential contractors.

When the contractor who exercises First Amendment rights is adversely affected by a decision that gives him the potential of saying, foul, you have harmed me, and it is retaliatory against me, how is that conflict to be resolved?

We suggest that the term of bridging really has two different components.

One, of course, is the interest of government.

To what extent, and how is its ability to perform the functions that is expected of it by the people who voted them there to continue if they have to live under the threat of intent determination, motive determination litigation, and the question is, can it?

The second component, I think, is the end result of government action on the person who exercises his First Amendment rights.

Is it an abridgement if he is left in a position that is no different and equal to the position of his comparators in similar situations?

Antonin Scalia:

Now, you have acknowledged in your response to the Chief Justice that this is to some extent a balancing question.

It’s not an absolute right.

Where you have in patronage cases, you say, a greater interest on the part of government, you may not apply the same rule you’re urging on us here, and you may allow the discrimination on a partisan basis, right?

Donald R. Patterson:

All right.

The core question is the same.

It’s the ability–

Antonin Scalia:

But you balance to some extent.

Donald R. Patterson:

–Yes, you do.

You do.

Antonin Scalia:

Well, why don’t you balance on the other end as well?

You assert that this case is just like a Federal employee, just like a government employee case–

Donald R. Patterson:

No–

Antonin Scalia:

–and that, you know, similar rules… is having the Government contract as important as having a Government job?

Donald R. Patterson:

–The core interest of government is essentially the same, the ability to continue its services.

The mechanics by which that are achieved I think are different because of the different legal relationship and the different economic relationship between contractors and Government and employees and the Government.

Antonin Scalia:

Well, I’m not talking about the Government interest.

I’m talking about the interest of the person asserting the First Amendment right.

Antonin Scalia:

What he’s being deprived of in one set of cases is employment by the Government, which is livelihood, which is bread on the table.

Donald R. Patterson:

Okay.

Antonin Scalia:

Isn’t that somewhat… isn’t that a much greater interest than being deprived of a contract with the Government?

Donald R. Patterson:

It is, and in… that’s particularly true in this case.

Stephen G. Breyer:

Well, why is it?

Why is a… for example, wouldn’t it just have to say, it depends?

I mean, why… a temporary employee, somebody who is provisionally hired for 6 months at a government summer camp I take it is protected in that 6-month job by the First Amendment.

Donald R. Patterson:

It could be.

Stephen G. Breyer:

While McDonnell Douglas, which employs 400,000 people… I’m making that up, obviously, but their lifeblood depending on this contract, I take it under your theory you have to concede that the First Amendment would apply to what the 4-month employee at the summer camp, there provisionally, might happen to say, but on your theory it wouldn’t apply to all of McDonnell Douglas, on which the entire economy of Southern California depends, so I mean, how can we say that one in principle is more important than the other?

Donald R. Patterson:

Well, I think that it’s a question of degree, and I believe this Court has previously said that degrees–

Stephen G. Breyer:

But, remember, the Court has talked about the First Amendment applying to protect probationary employees.

Donald R. Patterson:

–Yes, that’s right.

Stephen G. Breyer:

People who don’t have permanent jobs.

Donald R. Patterson:

I–

Stephen G. Breyer:

Who are there just for a moment.

Donald R. Patterson:

–I’m about to address that.

I think the issue is whether or not he has been harmed as compared with other equally situated comparators.

The employee who is shut out, or not given the job for which he applies, sure, he’s harmed, as compared with other employees, but in this case, what happened?

This contractor… and you have to go back into the facts of the case.

This was essentially a contract between Mr. Umbehr and six cities, that’s all.

Under this contract he hauled no trash for the county.

The county paid him nothing.

Stephen G. Breyer:

But you’re arguing for a rule, I take it, that applies to all contractors, or are you saying that there are just certain contractors that are free of the First Amendment–

Donald R. Patterson:

No.

My point is that in this second component of abridgement, the contractor has to be left in a position that is less than the position of his silent comparators, and in this case he was not.

His basic complaint was that the playing field on which he had to compete with other contractors for the same business was leveled.

David H. Souter:

–I thought this was a… not a rebidding of the contract, I thought it was a continuation of the contract, and what your clients did was to cancel it.

Donald R. Patterson:

No.

That… those were not the facts, Your Honor.

David H. Souter:

They did not exercise their option not to renew–

Donald R. Patterson:

They–

David H. Souter:

–If they had done nothing would the contract have continued–

Donald R. Patterson:

–They terminated it.

David H. Souter:

–If they had done nothing, would the contract have continued?

Donald R. Patterson:

Yes, it would have.

David H. Souter:

Okay.

Donald R. Patterson:

It would have.

David H. Souter:

So this wasn’t a mere matter of, as I think you were saying to Justice Breyer, of leaving this contractor in the position that he would have been in relation to other intending contractors, if your clients had done nothing.

It was, in fact, a considerable readjustment of the contractor’s position.

Donald R. Patterson:

It was, because what the readjustment that occurred was that he lost his competitive edge that he had over other equally situated contractors.

David H. Souter:

May I go to a different question?

You alluded a moment ago to the Government interest.

In the case of the Government’s interest when dealing with an employee, in the kind of obvious case, one is concerned about the capacity of the Government to continue to function administratively within government offices when someone is disruptively criticizing.

What is the Government interest here?

How, specifically in this case, was the county rendered at a disadvantage in doing whatever it did in relation to trash merely by the fact that this contractor was saying critical things about them in relation to trash at open meetings and all sorts of things.

Why were they rendered less able to function?

Donald R. Patterson:

The specific answer to your question is that it had nothing to do with hauling trash, because under this contract Mr. Umbehr hauled no county trash and the county paid him nothing–

David H. Souter:

Well, regardless of whose trash he was hauling, how was the county rendered less able to function in doing the things that it did by virtue of this criticism?

In other words, I’m saying how do you create a parallel between this situation and Pickering, if you’re going to argue for a balancing test?

Donald R. Patterson:

–It impaired their ability to terminate what they perceived was a contractual relationship that was no longer needed.

It took up a lot of the county’s time.

They received no benefit from it.

David H. Souter:

Well, are we just arguing about facts in this case?

In other words, the county is simply saying, we didn’t terminate the contract because of all the nasty things he was saying, we terminated the contract because we didn’t need a contract any more.

Donald R. Patterson:

No.

That gets into the issue of motive determination, which admittedly is a fact issue in the event this is ever–

David H. Souter:

Okay, so if that’s not what the case is about, let’s assume that the speech was at least in some respect a factor in the county’s decision.

Donald R. Patterson:

–For here we assume that.

David H. Souter:

How did the remarks that he made make it difficult for the county to function?

Donald R. Patterson:

If the county made the decision that the service they were providing… that is, getting Mr. Umbehr and the six cities together on a contract was no longer needed, the question is whether or not the First Amendment empowers the contractor who uses his First Amendment rights, to continue that practice even though it’s not–

David H. Souter:

No, the question is, how does it make it hard for the county to function?

What’s the county’s interest?

Donald R. Patterson:

–Okay, it makes it harder for the county to function because of the threat and expense of motive determination–

David H. Souter:

In other words, you’re saying there should be no recognition of a First Amendment right because First Amendment litigation is difficult and troublesome?

Donald R. Patterson:

–No, I think that would be begging the question.

I think it’s a question–

David H. Souter:

I do, too, but I–

[Laughter]

May I just ask you this, is it your view that because First Amendment litigation is expensive for the county, they have to prove their motive was something other than retaliation for the speech, but what if they wanted to have a policy that would remove the fact issue and they just published an announced policy, we will not do business with any trash haulers who criticize members of the county board?

If they were very candid about their feelings, we don’t want to do business with people who criticize us, would that be permissible?

Donald R. Patterson:

–I think that would come very close to a prior restraint, and my answer to that would be probably not.

John Paul Stevens:

Well then, the difference between that case and this one is just one that you have to try out the facts to find out what the real motive is in this case, and the one I hypothesized, we all know what the motive is.

Donald R. Patterson:

Well–

John Paul Stevens:

But see, they’ve alleged the motive similar to the one I describe.

Donald R. Patterson:

–That’s true.

John Paul Stevens:

And it seems to me on a motion to dismiss we have to assume those allegations are true, so I’m not sure there’s a distinction between my case and this one.

Donald R. Patterson:

Well, I think the difference is this.

I think it’s a question of how the contours of the First Amendment right are going to be defined in terms of that word, abridging.

Now, that’s the First Amendment word.

Ruth Bader Ginsburg:

Mr. Patterson, the answer that you just gave, it seems to me inconsistent with what you said earlier about the level playing field, because if the Government had this policy that applied equally to all contractors, if you’re going to be consistent with the position you were taking, wouldn’t you have to say, well, that’s okay, because they’re all being treated the same?

Donald R. Patterson:

I think that’s a different issue.

That’s… that goes to the component of abridging that deals with the interest of the contractor.

My point there simply was that–

Ruth Bader Ginsburg:

But if this contractor isn’t harmed in your view then no other question is relevant.

Donald R. Patterson:

–Well, except that they… that is another question.

If the contractor is not harmed, it’s our contention that he has–

Ruth Bader Ginsburg:

Then he wouldn’t be harmed whether the Government does it up front by saying, don’t talk if you want a government contract, or wait until the contract is underway.

Donald R. Patterson:

–No, I think that crosses up the facts of the case.

What was occurring was–

Ruth Bader Ginsburg:

But that’s my concern.

Ruth Bader Ginsburg:

Are we talking about the facts of this case, in which I might say contractors come in all sizes and shapes, some are very much like employees, some are very distant from employees.

I thought that you were drawing a contractor line, and you were drawing a line between employees–

Donald R. Patterson:

–I am.

Ruth Bader Ginsburg:

–and contractors.

Donald R. Patterson:

I am.

I think–

Sandra Day O’Connor:

Well, Mr. Patterson, suppose it were an employee of the county who wanted to assert free speech rights and be critical of how the county used county equipment for private purposes or something, now, in that situation as well, the county would be faced with the threat and expense of litigation, would it not, same burden on the county as you assert here.

Donald R. Patterson:

–That’s true.

I think–

Sandra Day O’Connor:

And so what result in the employees’ situation?

Do we protect the employees’ speech on matters of public interest?

Donald R. Patterson:

–Well, you do under Pickering, of course.

Sandra Day O’Connor:

Yes.

But you say it has to be different for every independent contractor.

Donald R. Patterson:

I think the difference lies in the fact that the spectra of government decisions that can impact contractors adversely is much greater and much more numerous than it is in dealing with an employee, and secondly, I think the–

Sandra Day O’Connor:

I don’t understand what you’re saying.

Donald R. Patterson:

–Well–

Sandra Day O’Connor:

We’re dealing here with a contract termination.

Donald R. Patterson:

–Okay.

With… in the employment situation, the employee speaks out on some subject of concern but how, in effect, does that impact the employer?

Sure, he may have to defend one lawsuit, but does he–

Sandra Day O’Connor:

Well, you can say the same here about the independent contractor.

Sure, you may have to defend one lawsuit.

Donald R. Patterson:

–No.

I think that the likelihood and the number of lawsuits with which they are threatened is much more numerous if the right of free speech is so defined, and the contour is so defined.

For example, in this case, should the contractor be empowered by his threat to perpetuate a service that is perceived as no longer needed?

Sandra Day O’Connor:

Well, you had an agreement that said it was terminable by either party at will.

Donald R. Patterson:

All right… no.

No, not quite at will, 60 days’ notice prior–

Sandra Day O’Connor:

On 60 days’ notice.

Donald R. Patterson:

–Sixty days’ notice prior to April 7 in any given year.

Sandra Day O’Connor:

Right.

Donald R. Patterson:

Yes, that’s right.

Sandra Day O’Connor:

That’s not impaired, is it?

Donald R. Patterson:

No, that was… well, it was, yes, because that’s exactly what they did.

Sandra Day O’Connor:

Only because the county didn’t provide the proper notice.

Donald R. Patterson:

Well, that was–

Sandra Day O’Connor:

I mean, on any given year, if the county had applied… had followed the procedure in the contract for giving notice, it could have done so, could it not?

Donald R. Patterson:

–That’s exactly what it did in 1991, and that’s what brought about the suit.

William H. Rehnquist:

Mr. Patterson, the opinion of the Tenth Circuit on page 10a of the petition for writ of certiorari says, speaking of the contractor, he claims monetary injury from the termination of the contract, and there’s no dispute that such injury is fairly traceable to defendant’s actions in terminating the contract.

It’s fairly alleged, an injury caused by defendants.

Accordingly Mr. Umbehr has standing.

Now, we take those facts as found by the Tenth Circuit.

We’re not going to go back and examine them.

Donald R. Patterson:

Well, I… we know why he lost the other city.

He was underbid by another contractor, who was silent.

The question is–

Well–

Donald R. Patterson:

–does the First Amendment empower him to be free of that competition?

William H. Rehnquist:

–Well, you’re saying, then, the real reason for his termination was not his speech but some Mount Healthy type of reason, a totally independent basis, but that’s not what this case is here for.

Donald R. Patterson:

Well, as I perceive it, the question here is how and to what extent the contour of First Amendment right really is on the part of a contractor in dealing with government with which he seeks… with which he seeks to contract.

Now, the question really is whether or not the contractor, who by speaking out on matters of public concern, can define his own benefit for which, if he is denied, he has the right to go to Government and say, pay me my demand or pay my damages, take your choice.

William H. Rehnquist:

Well, but the contractor, the governmental agency always has the right… perhaps it has to be pursued through litigation… of saying, we are not dismissing him, we’re not discontinuing him because of his speech, we’re discontinuing him because of unsatisfactory performance, or failure to perform.

Donald R. Patterson:

All right.

That would be a reason.

That would be a reason, and what we suggest is that the Government in making decisions should be free of that kind of threat of motive determination litigation if there is objectively legitimate government reason for making the decision they made.

Now, that’s–

David H. Souter:

Why doesn’t that argument apply to any decision that the Government might make with respect to any citizen on any subject?

Why should there be… in effect, on that argument, why should we conclude that there would be no right, in effect, to criticize the Government, that the Government would be able to take retaliatory action so long as it had an objective basis for taking the original action that the individual criticized?

Donald R. Patterson:

–Well, there again, I think–

David H. Souter:

Why doesn’t your argument in effect sort of read the First Amendment sort of–

Donald R. Patterson:

–Well–

David H. Souter:

–out of the system?

Donald R. Patterson:

–I think it’s a question of whether or not the contour of the First Amendment right of the ordinary citizen who has no contractual right with the Government is the same as the contour of the First Amendment right of the contractor who does wish to do business with the Government.

David H. Souter:

Well, if you want to draw a distinction between the citizen and the contractor, you’ve got to start at least by identifying an interest on the part of the Government which would justify, at least arguably justify drawing that distinction, and the only interest that I’ve heard in the course of this argument is an interest in avoiding litigation.

Is there any other government interest, when the Government is dealing with an independent contractor, and I’m assuming in my question that it’s not an independent contractor who in effect is performing an employee’s function with an employee’s relationship in fact, I’m talking about a real independent contractor like this one, is there any government interest other than avoiding litigation which is the basis, in your view, for distinguishing contractors and employees and citizens?

Donald R. Patterson:

Yes.

I think there are a number of decisions that ought to be shielded from that kind of interference.

For example, the decision of whether or not to continue a service that they perceive is no longer needed.

A decision to no longer perform this service by a contractor, but do it by employees.

John Paul Stevens:

Yes, but could I just ask you this supposing you have three contractors, one of whom makes a lot of speeches, like this gentlemen.

Donald R. Patterson:

All right.

John Paul Stevens:

Another is an Irish Catholic, and a third one is a Negro.

Donald R. Patterson:

All right.

John Paul Stevens:

Each one of them says he was terminated because… for a racial reason, or a religious reason, or a free speech reason.

Each one of them raises the question of proving motive.

Why should there be a difference in your duty to have to prove motive if you have an independent reason or you don’t in the three difference cases?

Donald R. Patterson:

Well, I think you’d have to inquire why were they terminated?

It’s a question of whether or not there was–

John Paul Stevens:

And they allege because I was a member of a religion that the members of the board don’t like, or a member of a race they don’t like, or a member of somebody who speaks out against them.

Why is there a difference between the three in evaluating the burden on the board to explain it had a legitimate reason rather than one of these impermissible reasons?

Donald R. Patterson:

–Well, I don’t think there is any difference, as long as there is a legitimate, objectively legitimate government reason for doing whatever they did.

John Paul Stevens:

And if there is not an objective government reason, but the only reason anybody can figure out is a bad reason in the three cases I put, wouldn’t you treat them all alike?

Donald R. Patterson:

In that context yes, you probably would, but you’ve got to assume the absence of a legitimate, or an objectively legitimate government reason for doing what they did.

They did it solely because of an impermissible reason, yes.

John Paul Stevens:

And that’s what the plaintiff has alleged, and says he’s undertaken the task of proving that.

If he can’t prove it, he loses.

Donald R. Patterson:

All right.

My question, or my contention, or our contention is that there is… there ought to be some kind of an interest on the part of government to perform its functions that to a degree is free and clear of this kind of threat.

William H. Rehnquist:

I think an argument can be made, and feel free to differ, that the Government’s interest in the contract situation is not as strong as the Government’s interest in the employee situation.

William H. Rehnquist:

If you have an employee in the district attorney’s office that goes public saying, you know, things are really balled up here, or something like that, it really can impair the efficiency and operation of that office as well as its reputation, but it seems to me if you have an independent contractor saying things are wrong with the… no one attributes those remarks to the agency itself.

It’s much more of an adversary situation, and perhaps the county doesn’t have the same interest in wanting to present a united front among its employees.

Donald R. Patterson:

Oh, I think the threat to government is different in a contractor situation than it is in an employee situation, and you hit upon the exact difference, and that is, the employee can at least create the appearance of speaking on behalf of the Government that employs him.

That isn’t true of the contractor, but on the other hand–

Ruth Bader Ginsburg:

Then all the more reason for the Government to tolerate that speech because it doesn’t affect them.

Donald R. Patterson:

–Well, again, I would disagree.

David H. Souter:

Well, how does it affect them other than making them feel bad and subjecting them to a heightened scrutiny by people who say, gosh, these criticisms may be true?

How is the Government otherwise affected?

Donald R. Patterson:

The expense of litigation impairs their ability to make an objective decision of what’s best for the voters.

David H. Souter:

In other words, they might have to litigate.

Donald R. Patterson:

That’s right.

Ruth Bader Ginsburg:

But that’s the same whether it’s race discrimination, as Justice Stevens pointed out… in every one of those cases the Government says we did it for a good reason, the complaint alleges you did it for a bad reason, and if you have conceded, I believe, that if it’s race discrimination, sex discrimination–

Donald R. Patterson:

They’re all prohibited, that’s true.

Ruth Bader Ginsburg:

–Yes, but speech discrimination isn’t?

Donald R. Patterson:

Well, I–

Ruth Bader Ginsburg:

That seemed to be the position you’re taking.

Donald R. Patterson:

–Of course it is, and I would go right back to the word of bridging.

It’s a question of how the contour of that right is to be defined.

I suspect that’s why we’re here.

Sandra Day O’Connor:

Well, Mr. Patterson, this case has been remanded for trial, I assume.

Donald R. Patterson:

It was remanded for reconsideration under Pickering, if I recall the exact language.

Sandra Day O’Connor:

To apply a Pickering balance type test–

Donald R. Patterson:

Yes, that’s right.

Sandra Day O’Connor:

–and the county can offer its so called Mount Healthy defense saying we would have terminated the contract anyway–

Donald R. Patterson:

That’s right.

Sandra Day O’Connor:

–for other reasons, so that’s open on remand.

Donald R. Patterson:

That… had we not been here, that’s where we would be.

Sandra Day O’Connor:

And what’s the matter with that?

Donald R. Patterson:

I think that the differences between contractors and employers, both the economic difference and the legal difference, requires a different kind of a contour drawing of what those interests between government and the contractor are.

For example–

Sandra Day O’Connor:

Mr. Patterson–

–Well, what test should be employed, then, if it isn’t a Pickering balance test?

Donald R. Patterson:

–Well, it is a balancing test, but I think the factors that must be considered are different.

The reason is that a contractor is usually in a position, a bargaining position with his superior.

He can negotiate in the contract some of his own protections.

Secondly, government controls only the result with the contractor.

The Government cannot control what the employees do or the means of accomplishment.

They can control only the result.

But that also brings into question whether or not the contractor can compel a continuation of a result that the Government officials no longer want.

Antonin Scalia:

Mr. Patterson, I confess not to understand what proposition you’re defending here.

Are you prepared to defend the proposition that if the Government has no reason for terminating this contract except… no reason at all, except the individual’s criticism of Government operations, that that termination is nonetheless lawful, and–

Donald R. Patterson:

No.

That’s not what I’m saying at all.

Antonin Scalia:

–You are not defending that.

Donald R. Patterson:

No.

That’s what I thought this whole case was about.

Donald R. Patterson:

I’m sorry.

That’s not what I’m defending at all.

Goodness, I don’t know what it’s–

Donald R. Patterson:

No.

The point I am defending–

Antonin Scalia:

–If the Government has another reason, well, I mean, that’s no problem at all.

I don’t think anybody’s arguing that if the Government has another reason to fire him, to terminate, that it wouldn’t be okay.

Donald R. Patterson:

–Our contention is–

Antonin Scalia:

To say, you know, I have a good reason to terminate, and I’m also glad to terminate it because he said some bad things about me.

There’s nothing wrong with that.

[Laughter]

Donald R. Patterson:

–The question… the question is whether or not, if government does have a legitimate, objectively legitimate reason for terminating a contractual relationship, should they be afraid to do it.

William H. Rehnquist:

Thank you, Mr. Patterson.

Mr. Van Kirk.

Robert A. Van Kirk:

Mr. Chief Justice, and may it please the Court–

This case is about whether the First Amendment protects independent contractors from retaliation based solely on the expression of viewpoints dissenting from those of the Government officials in power.

It is in essence about whether independent contractors forfeit their right to engage in public debate and to criticize Government officials when they contract with governmental entities.

The petitioners have raised a host of contentions in their briefs.

I’d like to focus on what I think are the three central questions presented by this litigation.

First, a consistent line of cases from this Court, spanning over 40 years, clearly support the Tenth Circuit’s conclusion that there is no blanket exception to the First Amendment for independent contractors, and that they, like all citizens, are entitled to protection under the First Amendment from official retaliation for their speech.

Second, because the Government’s interest in regulating the speech of independent contractors is so narrow and limited, their speech should be subject to a heightened form–

John Paul Stevens:

May I just interrupt?

What is the principal case that you rely on for your first point?

Robert A. Van Kirk:

–On the first point there actually is no principal case, it is a entire string of unconstitutional condition cases that this Court–

John Paul Stevens:

But name one involving a government contractor.

Robert A. Van Kirk:

–Lefkowitz v. Turley, Your Honor, in which in the Fifth Amendment context this Court recognized that the Government could not ask the independent contractor to forfeit their right against self incrimination as a–

John Paul Stevens:

Do you have a case involving a government contractor and the First Amendment–

Robert A. Van Kirk:

–There–

John Paul Stevens:

–in this wide range that you describe so categorically?

[Laughter]

Robert A. Van Kirk:

–It depends on if you view the employment cases involving contracts as independent contractors.

John Paul Stevens:

Do you have one involving–

Robert A. Van Kirk:

No.

No, Your Honor.

–an independent contractor?

Robert A. Van Kirk:

The answer–

Nice try, though.

[Laughter]

I gather the answer is no.

Robert A. Van Kirk:

–The answer is no in this specific context, so what it is, it is the application of well established principles to the unconstitutional condition doctrine to an actual situation that is marginally different than the situations that this Court has encountered previously.

Anthony M. Kennedy:

Is it necessary for us to talk about unconstitutional conditions?

Why isn’t this just a State effort to censor speech, and void for that reason, and why do we have to talk about unconstitutional conditions?

Robert A. Van Kirk:

I think because the contractual relationship is what is being terminated, and the Court… there is some question in the Court’s jurisprudence about how to address the public employment cases and whether or not that is use of the employment as punishment for speech and viewpoint discrimination.

William H. Rehnquist:

Well, doesn’t Roth v. The Board of Regents at least form a springboard for your argument?

Robert A. Van Kirk:

I think so.

There are a number of… each of the Court’s employment cases do refer to this use of the job benefit as a condition being placed on individuals’ speech, so it is talked about in the context of unconstitutional issues.

Anthony M. Kennedy:

Well, the Government does not have an interest in censoring or suppressing any ideas except in very, very narrow circumstances, and why isn’t that dispositive of this case?

Robert A. Van Kirk:

I think that is as well, Your Honor.

I don’t know that the two theories are necessarily dissimilar.

There are situations in which the Government, in its different capacities, does have an interest in regulating speech.

We don’t see any in this case.

Antonin Scalia:

Mr. Van Kirks, if I’m a government contracting officer for some county, and the person, one of the bidders for the contract comes in, and he curses me out, he says, you’re a blankety blank blank blank, you know, and… very offensively, and the guy goes off, and I say, boy, I’m darned if I’m going to give the contract to him, that’s unconstitutional, you’re telling me.

Robert A. Van Kirk:

It… what we have–

Antonin Scalia:

It’s unconstitutional.

Robert A. Van Kirk:

–What we have suggested is that the Court–

Antonin Scalia:

I mean, is the Constitution really that silly?

Robert A. Van Kirk:

–What we have suggested, the Court need not in this case address whether or not there is a similar private speech issue.

The speech in this case, and I think petitioners acknowledge, is on core matters of public concern.

In that situation, the Court may wish to, if it is presented with a situation like that, adopt a similar restriction as involving the public employment context–

Antonin Scalia:

Just on core matters of public concern, I see.

Robert A. Van Kirk:

–We recognize that this case is on core matters of public concern.

Antonin Scalia:

So if he said, you know, I… you are a disgrace to the public service, you’re the worst contracting officer I’ve ever dealt with, and you ought to be impeached, that… then we have a different situation.

He just has to be careful how he curses me out, is that it?

[Laughter]

Robert A. Van Kirk:

It does… the analysis does depend on whether or not we are… at least as is articulated in the employment context, on whether or not the Court is dealing–

William H. Rehnquist:

If he said the same thing to the commissioners in private after the meeting it would be a different case?

Robert A. Van Kirk:

–No, it would not, Your Honor, as Givhan suggests, that–

Yes.

Robert A. Van Kirk:

–private speech is equally as protected.

I think Justice Scalia’s point goes to whether or not simply a complaint about the manner in which the contract is being administered, or complaints about the nature of the contractual relationship itself, whether that would anidate a person–

Antonin Scalia:

Well, but it’s always a lawsuit.

You say in your brief that it’s no big deal, there’s not going to be a whole lot of litigation, after all the Federal… it’s either you or the Government says, you know, there hasn’t been a whole lot of litigation against the Federal Government and it points to these wonderful Federal Government contractual regulations.

You expect every municipality and county in the country to have ASPA regulations?

Have you ever looked at the Government’s contracting regulations?

Robert A. Van Kirk:

–I have not take the time to peruse–

Antonin Scalia:

No.

They are a maze, and it takes a very good lawyer to negotiate his way through it, and if that’s the proof that we are not going to unleash a mass of litigation that’s unmanageable, it’s not a very good demonstration.

Robert A. Van Kirk:

–No.

I think what is a good demonstration, however, Your Honor, is the fact that these claims are currently available, as we suggest, in a number of circuits, and there still is not a flood of litigation, and I think what actually occurs, independent contractors generally are afraid of antagonizing what is not only the sovereign but their business partners, and as a result there is some limitation on their willingness to bring suit.

Let me–

–Some chilling.

Robert A. Van Kirk:

There is some chilling.

William H. Rehnquist:

Or self censorship, perhaps.

Robert A. Van Kirk:

Yes, I think that’s very true.

John Paul Stevens:

You mean sales executives don’t normally go into the contracting officer and call him all sorts of bad names?

No?

[Laughter]

Robert A. Van Kirk:

They typically attempt to avoid that, Your Honor.

Sandra Day O’Connor:

Well now, in dealing with claims of this kind, should the courts apply a Pickering type balance such as we would if it were a government employee?

Robert A. Van Kirk:

We think not a Pickering type balance because it does not… it underprotects speech in this particular context.

Each of this Court’s–

Sandra Day O’Connor:

Well, not necessarily.

We’re living in an age where government is trying to do more and more government functions by way of private contracting, and nonetheless perform services that government traditionally performs, and when they contract with private people to perform those services, why shouldn’t the interest be very much like that of an employee?

Robert A. Van Kirk:

–I think that that’s true, in those situations where we’re dealing with independent contractors that are essentially the equivalent of an employee, there is no reason–

Sandra Day O’Connor:

And I suppose in connection with trash hauling we might think that that was a traditional public function.

Robert A. Van Kirk:

–I would suggest there is a difference between traditional public function and the degree to which an employee or an individual is incorporated within the Government’s own operations, the degree of interference that their speech may cause.

There’s some nexus or connection between the speech and the potential disruption.

Here, we have a very thin, narrow line affecting the contractor–

Sandra Day O’Connor:

Yes, but if somebody comes around and picks up my trash at home, I’m going to assume it’s some kind of government service being provided, so government might have a real reason to treat even a private contractor in that context like an employee.

Robert A. Van Kirk:

–I think that the Government has some interest in considering the speech of independent contractors.

It has a much less interest, in response to your question about whether Pickering provides the appropriate analysis, in situations like this.

William H. Rehnquist:

What if the public contractor, or the hired contractor hauling trash in Justice O’Connor’s example says, you know, to every person he hauls trash from, vote Republican, or vote Socialist, or something like that, and the county says, we just don’t want our trash haulers to go around making political campaigns.

You keep your mouth shut on that subject.

Can they do that?

Robert A. Van Kirk:

I think they would have difficulty making that… putting that restriction on the contractor.

As long as the contractor is not viewed… I mean, in this case, for example, Mr. Umbehr’s trucks clearly say, Solid Waste Systems, on the side of them.

The individual may know that government has hired the contractor, but it’s not going to impute the speech to the Government.

It’s not going to view the individual as speaking on behalf of the Government.

Now, the Government may say, you’re slowing down, you’re not going fast enough in picking up trash.

We don’t care what it is that you do on your own time, we want you to finish this schedule.

David H. Souter:

You’re saying, then, I think, that when the independent contractor is not functionally like an employee in the office that the only real issue is whether the contractor is performing the contract or not.

Robert A. Van Kirk:

Yes, that’s absolutely correct, Your Honor.

David H. Souter:

And if it’s not, they can fire him for nonperformance, and if he is, that’s the end of the issue.

Robert A. Van Kirk:

Precisely.

Antonin Scalia:

So if I’m a municipality and I want to hire private guards, let’s say, for housing projects or something like that, and I have several applicants, one of whom is a reputable, goo goo organization, unimpeachable people, the other one of which is an acknowledged racist organization which preaches racism, I have to, as the Government official, say, well, it’s a government contract.

I cannot favor one view over the other.

Whoever comes in with the lowest… lower bid–

Robert A. Van Kirk:

It depends on whether or not you are… the individuals are–

Antonin Scalia:

–They’re not going to be racist in their job.

Robert A. Van Kirk:

–They’re not–

Antonin Scalia:

They’re both going to do the same job.

Robert A. Van Kirk:

–Yes, I think that that’s correct, Your Honor.

I have to do that.

Robert A. Van Kirk:

Yes.

Now, if you’re… let me pose a different–

Antonin Scalia:

I think that’s extraordinary.

Can’t the Government favor some ideas over other ideas, and when it gives away money, can’t it give away money, for example, to organizations during a time of war that are supporting the war effort–

Robert A. Van Kirk:

–When the Government–

Antonin Scalia:

–and not give away money to organizations that are impeding the war effort?

Robert A. Van Kirk:

–When the Government is speaking, in fact hiring others to speak on its behalf, it does have far greater rights to control speech.

If it’s hiring a racial sensitivity trainer, and it has the same applicants that you describe, somebody with no racial bias and an individual who, in fact, is well known in the community as being racially intolerant, they, in that situation, can say, even if the racially… excuse me, the racially intolerant individual promises to adhere to the text of the script that they provide, they can say, we’re sorry, we are attempting to communicate a message of tolerance.

Your notoriety in the community is simply too great, because we, as the Government, are the speaker.

There’s a difference between when the Government is itself endorsing a message, attempting to communicate a message–

Antonin Scalia:

But so long as it’s not doing that, it has to allow its funds to be used to subsidize even the most obnoxious ideas.

Robert A. Van Kirk:

–Even speech it abhors, Your Honor.

William H. Rehnquist:

How–

–Isn’t there a difference, Mr. Van Kirk, between the Government’s initial decision to hire someone and the Government’s decision to terminate?

Might not there be different levels of scrutiny applied to one as to the other?

Robert A. Van Kirk:

This Court has suggested in various contexts, Wygant being one of them, that there may be a difference in the equal protection context, and certainly that’s the case here.

We believe we have the strongest interest.

I am not sure that the Government has any more compelling interest in regulating speech when it is considering–

What about–

Robert A. Van Kirk:

–bids as opposed to terminating an existing contractor.

I think it’s a stronger case, but I don’t think it’s constitutionally dispositive.

Stephen G. Breyer:

–What do you say about Mr. Patterson’s interest that he raised?

I mean, as I took what he was saying, he was saying, all right, concede for the sake of argument that the First Amendment applies.

The interesting question is the shape of that First Amendment right, and what I thought he was trying to raise, which sounded logical anyway, is think of the $400 billion or so being spent by State and Federal Governments on different kinds of contracts with people.

Many of these people are large firms.

They employ thousands or hundreds of people.

They have large groups of lawyers.

They are very, very interested in maintaining the Government moneys.

Each of the thousands of people who work for Government employment contractor X speak every day.

They spend all day speaking.

Now, if suddenly there are rights to bring 1983 actions for which you get attorney’s fees every time a Government is contracted, and that’s a very large right, and depends on what any of these 400,000 might be saying, and somebody might say, I’m going to vote Republican, I urge you to do the same, I’m going to vote Democrat, I urge you to do the same, all of which leads to a case being brought under 1983 by the paid lawyers who will get their attorney’s fees, which makes it very, very difficult for the Government to operate its contract operation, indeed, it will lead the Government to remove all discretion from contracting officers and operate on the basis of how many bricks you have, or how many… so it’s totally objective, et cetera.

That’s the kind of thing that he’s worried about, and I don’t think that’s an illogical thing to be worried about, and that doesn’t exist in the employee cases, and it doesn’t exist in the race cases, and it doesn’t exist in the sex cases to the same degree.

I’m trying to put his argument, and that’s what I’m very interested in, myself, that either you or the Solicitor General at some point respond to that.

Robert A. Van Kirk:

Certainly, Your Honor.

This Court has never suggested that that type of interest, that the potential for abuse, is enough to completely destroy–

Stephen G. Breyer:

Well, I’m suggesting it because I want to hear the response.

That is to say, what for the sake of argument… that sounds to me what is a very strong governmental interest the way he put it, and I don’t think that the First Amendment is ignorant or unaware of the way in which these principles work out in reality.

The Government has to be able to function, and all that’s built into Pickering, and I’m trying to get a rather… I’ve been at some length because I… it’s a serious question, I think, and I–

Robert A. Van Kirk:

–Pickering is concerned, and all of this Court’s First Amendment jurisprudence is concerned with the Government’s ability to function, and to demonstrate interests when it has interests, but the interests have to be in regulating speech, not in some generalized concern about abuse.

I’m not familiar with any Court… with any opinion from this Court, nor have I seen it cited in the petitioner’s brief, that would suggest that it is a cognizable part of the constitutional analysis to consider whether or not there are too many people who may be… may have a–

Antonin Scalia:

–Why don’t you see our rule on Shelley.

Antonin Scalia:

You really think we don’t take into account that?

I mean, I don’t think we’d write the opinion that way, but do you really think courts are oblivious to the real life consequences of rulings that they make?

Are you really saying that’s–

–I’m not… I’m not–

–an irrelevancy in this case?

Robert A. Van Kirk:

–I do not think that… I’m sorry, Your Honor.

Stephen G. Breyer:

I didn’t express myself well if I meant to go on just numbers.

I’m trying to draw a little picture of what he’s talking about when he says administrative problems that interfere with the practical administration of the contracting system.

Robert A. Van Kirk:

Your–

That’s the kind of thing he’s thinking about, and that’s what might lead to a Connick standard, or a Pickering standard, and… or some other standard, and it’s that kind of problem that I’d like to see addressed.

This isn’t an employment case.

That doesn’t mean it’s easier than an employment case.

It does suggest, with all respect, Your Honor, that in the employment context what the Court recognized in fashioning Pickering and Connick was the Government’s interest in regulating speech when speech is disruptive, not the possibility that hundreds of thousands of Federal and State employees may bring frivolous claims.

They may, but what we have always done in our system is leave that to the trier of fact, and that’s what I understand the petitioners to be attempting to avoid, is to allow a trier of fact to determine whether or not their motivation in this case–

Ruth Bader Ginsburg:

Mr. Van Kirk, one thing I wanted to get your answer on, Government contractors do come in all sizes and shapes.

Some are very close to employees, some are distant.

Maybe some are really akin to policymakers.

We have at least that system in place.

Why are you suggesting that we should go beyond that when there’s no uniformity in what Government contractors are?

Robert A. Van Kirk:

–In terms… I am suggesting an approach that takes into account what functional position the independent contractor is in in any particular circumstance, and what I’m also suggesting is that viewpoint based discrimination, as Justice Kennedy has pointed out, the constitutional baseline for that type of effort to punish disfavored views is strict scrutiny, and there has to be some Government interest sufficient to move us away from that baseline.

Ruth Bader Ginsburg:

Is there a policymaker category for Government contractors the way there is for employees?

Robert A. Van Kirk:

I concede that in that situation where the Government says, we need to be able to rely on a confidential relationship with this independent contractor in the same way that we do with an employee, that that may be perfectly permissible for in that situation the Court to–

Ruth Bader Ginsburg:

How about matters of public concern, as distinguished from ordinary gripe and grousing?

Robert A. Van Kirk:

–Again, we don’t believe this case presents occasion to address that, but it does… the Court’s opinions suggest that that type of issue would present a situation that is not of constitutional magnitude.

If it is simply a personal dispute with the contracting agency about the terms of the contract, rather than something that the general public might be concerned about, the Court may wish to indicate that the same concerns that animated Pickering to exclude speech on matters of purely private concern is also excluded, but not addressing that situation.

Antonin Scalia:

Why isn’t the contractor matter of public concern?

That is–

Robert A. Van Kirk:

I’m sorry, Your Honor.

Antonin Scalia:

–Why isn’t the contract with a public entity, the terms of that contract a matter of public concern?

I would think it is.

Robert A. Van Kirk:

In addressing this situation in the courts of appeals under Pickering, plaintiffs often attempt to say anything that has to do with the Government, Government function is a matter of public concern.

It’s typically an unsuccessful argument.

It is available to them–

Antonin Scalia:

Should it be?

Why?

Just–

Robert A. Van Kirk:

–Because–

Antonin Scalia:

–Because it would cause too much litigation?

But you’ve rejected that argument.

Robert A. Van Kirk:

–I have suggested that in terms of addressing general First Amendment jurisprudence that that ought not to be the rule for an entire class of individuals, that you would not wipe out First Amendment protection for core matters of public concern based on considerations of administrative efficiency.

Antonin Scalia:

What are core… core… okay, core matters of public concern, which wouldn’t include whether the terms of a very expensive contract that the county had entered into are being abided by or not?

Robert A. Van Kirk:

They may, Your Honor.

Each situation is going to involve–

Antonin Scalia:

It may involve contract terms, then.

Robert A. Van Kirk:

–It may… there is a balancing that goes on here, there’s no question.

Antonin Scalia:

We’ll have to litigate it, I guess, to figure out for sure.

Robert A. Van Kirk:

But that’s the central question that’s presented, is do we even get to that point?

Anthony M. Kennedy:

Well, counsel, suppose that a municipality owned a number of garbage trucks, that it owned and it used to operate with its own employees.

It then switches.

It wants independent contractors to come in and run the trucks.

Can it tell these independent contractors, since you’re using our trucks, we do not want you to discuss matters of pubic concern or politics, just pick up the garbage, and that’s it?

Robert A. Van Kirk:

No, it may not, Your Honor.

To the same extent they may not make that–

Anthony M. Kennedy:

Even though it has given to these contractors substantial government assets to use in order to circulate throughout the community?

Robert A. Van Kirk:

–That essentially would swallow the unconstitutional conditions doctrine, Your Honor.

It would suggest as long as we are providing you with some benefit, here the trash contracts, we can dictate what you say, and that’s, I would suggest is inconsistent with the approach this Court has taken.

William H. Rehnquist:

Thank you, Mr. Van Kirk.

Ms. Brinkmann, we’ll hear from you now.

Beth S. Brinkmann:

Mr. Chief Justice, and may it please the Court–

I’d like to first address a number of administrative problems that Justice Breyer asked about.

Beth S. Brinkmann:

I think it’s important to focus on that question on the other side of the issue here, and that’s the First Amendment speech that’s at issue here.

This is speech that lies at the core of the First Amendment.

It’s speech on matters of public concern, and often contractors are in a unique position to have information and to have an informed opinion about government functioning because of their relationship with the Government.

The Court recognized that–

Anthony M. Kennedy:

But aren’t they also in a unique position in the hypothetical that I gave, and like Justice Scalia’s hypothetical with the contract guards?

Aren’t they in a unique position, based upon their contract with the Government, their use of Government assets and Government payments, to have access to the community which other people do not have?

Why does the Government have to subsidize that?

Beth S. Brinkmann:

–Well, Your Honor, we believe that content neutral time, place, and manner restrictions could certainly be placed on employees.

That’s not a problem whatsoever.

When–

Anthony M. Kennedy:

Suppose they say, we don’t want you discussing any matters of public concern because you have a special privilege, going in to homes, that we are giving you, and we do not want you to exercise that on our behalf?

Beth S. Brinkmann:

–Your Honor, we believe that the Government certainly would have a right to terminate a contract if that provision was necessary to the effective performance of the contract.

Anthony M. Kennedy:

No, I will stipulate that out of the hypothetical.

Beth S. Brinkmann:

If it was content based, we don’t believe that that is the kind of action that the Government can take.

David H. Souter:

What if the Government… and I think this is the direction Justice Kennedy was going in.

What if the Government says, look, people who are having their garbage picked up do not want to have to listen to political harangues from you.

Don’t talk about politics while you’re picking up the garbage.

Is that a First Amendment violation?

Beth S. Brinkmann:

Your Honor, we think that the Government has the right to put terms in the contract that are necessary to its effective performance.

William H. Rehnquist:

That’s not an answer to Justice Souter’s question.

Yes, how about that term?

Don’t talk politics to homeowners when you’re picking up their garbage.

Violation?

Beth S. Brinkmann:

We believe that because of the content based nature of it there would have to be some kind of stronger Government interest.

William H. Rehnquist:

What’s content based about that?

Just don’t talk any kind of politics.

Beth S. Brinkmann:

I guess it’s how you define politics, Your Honor.

If it permitted neighborhood gossiping or other kind of speech that could have that same effect and excluded political speech, that would be a content based restriction.

David H. Souter:

But in any case, that is for the… even if… let’s add another term to the contract.

Don’t talk to them about politics when you’re picking up the garbage, but when you’re on your own time, say anything you want to.

David H. Souter:

Publish in the press, write letters, hire loudspeakers, sandwich boards, everything.

Still a violation?

Beth S. Brinkmann:

If it were limited to one topic we think that would raise problems of content based regulation.

Antonin Scalia:

Suppose it would limit–

–And if there is no restriction on the speech, then as between the Boy Scouts and the KKK the Government can’t discriminate between the two, right?

Beth S. Brinkmann:

Your Honor–

Antonin Scalia:

Assuming it’s making no speech restrictions, the Government can’t say we’d rather have the Boy Scouts do it?

Beth S. Brinkmann:

–I think that it really depends on the contract we’re talking about, Your Honor.

Antonin Scalia:

It’s a contract to pick up garbage, and we know that there’s going to be a lot of political discussion, okay.

They’re different garbage men than I have.

Yes.

Beth S. Brinkmann:

Yes, Your Honor, unless there’s a–

Antonin Scalia:

That’s what you’re saying.

The Government cannot possibly use its authority, its contracting authority to foster any policies or ideas that it thinks are desirable.

Beth S. Brinkmann:

–If the contract is to communicate the Government’s speech, certainly, and if–

Antonin Scalia:

No, the contract isn’t that.

It’s a contract, let’s say, to make a movie about the Army or something like that, and it cannot decline to give that movie contract to a pornographic film maker.

Beth S. Brinkmann:

–No.

The Government’s interest is in the performance–

Right.

Beth S. Brinkmann:

–of the contract, and that interest is what’s central to determining what analysis should be applied in these cases.

Antonin Scalia:

A good argument for restricting the scope of Government.

Beth S. Brinkmann:

Well, Your Honor, we believe that the Government’s interest in the performance of a contract can effectively be protected by the Government being free to take any action when the Government can establish that it materially and directly impairs the performance of the contract.

David H. Souter:

But you can win this case, or your side can win this case on a much narrower ground, can’t it, because we’re not talking… as I understand it, we’re not talking here about the contractor’s speech in the course of performance, we’re talking about the contractor’s speech, as it were, on the contractor’s own time.

Beth S. Brinkmann:

That’s correct.

David H. Souter:

And you can leave some of these difficult questions for another day and still, in theory, prevail, leaving them open, can’t you?

Beth S. Brinkmann:

That’s correct, Your Honor, and I also think that on those questions–

David H. Souter:

So the rule would be that what the contractor does on his own time is protected so long as it does not, in fact, impede the performance of the contract, is that… would that be the rule that you would argue for?

Beth S. Brinkmann:

–We would agree with that, Your Honor.

We think it–

Antonin Scalia:

Like pornographic film making, or burning crosses, right, so long as that doesn’t interfere with the picking up of the garbage or the making of film?

Beth S. Brinkmann:

–Your Honor, there may be situations, for example, I think in… yes, I guess is the answer to that question, with that hypothetical.

I think it’s important to focus, though, Your Honor, these are very context specific cases.

Pickering has recognized that and hasn’t set down a blanket, easy test to apply.

It looks at the context of each case, and we think that that is comparable in this situation.

David H. Souter:

So you think the Pickering rule applies to this… to independent contractors?

Beth S. Brinkmann:

No.

We don’t think that the deference that is given the Government’s interest as an employer that underlies Pickering applies here.

William H. Rehnquist:

Well, that’s an extraordinary argument for the Government to be making.

Certainly the Federal Government is going to be getting the same deference as a county commission, and it seems to me extraordinary for the Federal Government to come in and say, we don’t think we get much deference under the Constitution.

Beth S. Brinkmann:

Your Honor, we… the Federal Government has no interest in having contractor speech attributed to it.

As you pointed out earlier, one of the differences in the Government interests between the employee situation and the contractor situation is whether the speaker’s speech is attributed to the Government.

The Government doesn’t have any interest in policing contractors’ speech and having it attributed to it.

It’s a very different situation with the employment context, where the Government has the interest that Pickering recognized.

William H. Rehnquist:

Well, when I think of all the contracts the Government must have, the Federal Government, I can’t imagine that some situation wouldn’t arise where there’s going to be some issue like this, and you’re saying, in effect, we want the most stringent rule possible to be invoked against the Government, and here you are a Government attorney.

Beth S. Brinkmann:

I should restate my position, Your Honor.

We think when the relationship in the contracting situation is equivalent to an employment context, Pickering should apply.

Sandra Day O’Connor:

Well, let’s suppose a government contract to provide security guard services in a public housing project, do you think the Government can discharge the contractor because the people are members of the Nation of Islam, for that reason?

Beth S. Brinkmann:

Your Honor, I think that would be a matter of proof whether or not that fact–

Sandra Day O’Connor:

What test do we employ?

Do we use a Pickering balance test?

Beth S. Brinkmann:

–I think that the plaintiff would have to prove that their speech on matters of public concern was a substantial motivating factor in the Government’s action, where the Government could establish as a matter of fact that that speech materially and directly impaired the performance of the contract.

In that particular situation, if it was in the context where residents of that housing authority did not believe that the security guards would prevent them, it somehow impaired a trust relationship between security guards and the–

Sandra Day O’Connor:

What test are we employing here, a Pickering balance test, is that what you’re arguing for?

Beth S. Brinkmann:

–It’s a balancing test of the interest between the Government and the speaker, but I–

Sandra Day O’Connor:

A Pickering type test?

Beth S. Brinkmann:

–It’s not Pickering in the sense, Your Honor, that the inherent interest underlying Pickering, the Government’s interest in coworker relationship, in supervisory discipline, and in the functioning of a work place where they’re all Government employees there, that is a weight that is given a lot of deference in Pickering.

I normally think that when people are talking about Pickering balancing, that’s always in the scale, and that would not be in the balance when we talk in terms of Government contractors.

Ruth Bader Ginsburg:

Sometimes it would.

Beth S. Brinkmann:

It would be–

Ruth Bader Ginsburg:

That’s… my problem with your position is, you seem to be arguing for a case by case position.

You’re not arguing for something higher than Pickering in every case, but in some cases.

Is that… am I correct in understanding your position?

Beth S. Brinkmann:

–Yes, Your Honor.

I think it’s because Pickering was motivated by the fact that the interest of the Government as employer is consistent in the employee relationship category.

Ruth Bader Ginsburg:

So the courts have a framework that they know they can deal with, but you’re saying there can’t be any such for the Government contractor.

It has to be one case at a time.

Beth S. Brinkmann:

That there are certain situations like respondents here.

There’s just none of the factors that were present in Pickering.

There was no day to day supervision.

There was no relationship with the supervisor.

David H. Souter:

So, if I may ask, in a case like this case, if I understand you, you’re really not arguing that there should be a balancing test.

You’re saying the test should be, can they perform the contract and still say these things?

If the answer is yes, they cannot be penalized.

If the answer is no, they can be.

Beth S. Brinkmann:

Your Honor, we submit that’s what underlies Pickering.

What justifies Government action under Pickering is the impairment of the functioning of the Government, of the work place, and that’s the same interest in this case, but it’s–

William H. Rehnquist:

Thank you, Ms. Brinkmann.

I think you’ve answered the question.

Beth S. Brinkmann:

–Thank you, Your Honor.

William H. Rehnquist:

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.